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Court Upholds Wrongful Termination Suit Dismissal

BERLIN — The Maryland Court of Special Appeals this month issued an opinion affirming the Worcester County Circuit Court’s dismissal of a wrongful termination lawsuit filed in 2012 by a former Berlin Fire Company supervisor against the town and its elected officials, but the plaintiff’s attorney has vowed to push forward with the case with an appeal to a higher court.

In May 2012, the town of Berlin terminated EMS supervisor Norris Phillip Donohoe, Jr. after 23 years on the job when at least two EMS employees filed formal complaints alleging workplace harassment and discrimination. In July 2012, Donohoe filed a civil suit against the Mayor and Council and then-Town Administrator Tony Carson seeking at least $200,000 in damages.

The complaint alleged Berlin officials did not have the authority to terminate, or even discipline Donohoe over allegations of harassment and discrimination. Instead, Donohoe claimed that authority wrested with his immediate supervisors, namely the fire chief and the fire company president. In October of 2012, visiting Worcester County Circuit Court Judge David Mitchell dismissed Donohoe’s civil suit against town officials, but Donohoe’s attorney Robin Cockey quickly filed an amended complaint that focused more on the former EMS supervisor’s termination than the disciplinary actions. Again, Mitchell dismissed the case, pointing out the town’s elected and appointed officials were protected by the doctrine of sovereign immunity.

Cockey then filed an appeal with the state’s Court of Special Appeals, pointing out the Worcester County Circuit Court dismissed the case on the basis of sovereign immunity without ever hearing the merits of the case. The Court of Special Appeals then reviewed the case and last week issued a ruling affirming the decision of the Circuit Court. However, Cockey is not entirely ready to let the case go.

“The Court of Special Appeals upheld the decision of the Circuit Court, but I’ve petitioned the Court of Appeals for review, so that case isn’t over,” he said.

Essentially, the case boils down to who exactly has the authority to discipline, or in this case terminate, the town’s paid EMS personnel. In 2009, the town and its fire company entered an agreement under which paid EMS personnel were leased to Berlin as a means of making them eligible for state retirement and benefits. From the beginning, Berlin has asserted the “lease” agreement puts the paid EMS personnel under the direction and supervision of the town and subject to the same personnel policies and employee handbook regulations as other town employees.

When Donohoe was named in formal complaints filed by at least two EMS employees, complaints which have since led to larger civil suit against certain members of the fire company’s leadership in a separate case, Donohoe was first suspended for 30 days and was informed that upon his return to work, he would be demoted to EMS-paramedic. Donohoe then filed a formal grievance about the disciplinary action and was terminated by the town shortly thereafter, a termination he alleges was in retaliation for filing the grievance.

Meanwhile, the $8 million civil suit filed against the fire company’s leadership by a former firefighter and EMT alleging a pattern of harassment and intimidation over his perceived sexual orientation continues on a parallel course. In August 2013, former Berlin firefighter and EMT Zachary Tyndall filed suit in U.S. District Court alleging a long pattern of harassment and intimidation carried out by the department’s leadership over his perceived sexual orientation.

The suit, which originally named as defendants Chief Bryon Trimble, Assistant Chief Derrick Simpson, BFC President David Fitzgerald and Donohoe, is seeking $2 million in compensatory damages and $6 million in punitive damages. Donohoe and Fitzgerald have since been dismissed as defendants in the amended complaint.

The suit alleges the BFC and the named individual defendants carried out a “deliberate and conscious effort” to harass and intimidate Tyndall in an attempt to drive him out of the department because of the defendants’ perception of his sexual orientation. The alleged pattern of abuse included repeated derogatory slurs and other offensive actions carried out against Tyndall and ostensibly others by the department’s leadership. The allegations ultimately led to the town of Berlin pulling its municipal funding for the department although the tense relationship has eased somewhat and some of the funding has been restored.

Meanwhile, Tyndall’s civil suit continues to plod on toward trial, likely sometime later this summer if a settlement cannot be reached. Earlier this month, Tyndall, through his attorney James Otway, officially designated an expert witness to testify at trial. The formal filing anticipates Dr. Michael Finegan, a clinical psychologist, will testify at trial that the discriminatory treatment of Tyndall by the defendants was and continues to be the proximate cause of the plaintiff’s injuries and damages including depression, anxiety, stress and a feeling of helplessness, for example.